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Did Melania Trump deserve an EB-1 visa? Legally, it's no surprise

In 2001, a model known as Melania Knauss received an EB-1 immigrant visa, allowing her to live and work permanently in the United States. The official name of the visa is "Employment-Based Immigration: First Preference EB-1," but it is often referred to as the "extraordinary ability" visa or the "Einstein visa."

Those monikers led The Washington Post to question whether Ms. Knauss (now Mrs. Trump) had received special treatment. The answer is probably not. Plenty of models and performers receive EB-1 visas. They simply have to prove they have extraordinary ability in their field (science, the arts, education, business or athletics) and provide extensive documentation of it.

In addition to those with extraordinary ability in their field, EB-1 visas are available to outstanding professors and researchers and also to multinational managers or executives. However, the "extraordinary ability" category is particularly desirable because the applicant does not need an offer of employment.

In order to qualify for the extraordinary ability EB-1, you must pass a two-part test. The first part is to provide substantial evidence that you meet at least three of the 10 criteria below -- or that you have an achievement such as an Oscar, Pulitzer Prize or Olympic medal. The 10 criteria are:

  1. Receiving certain lesser nationally or internationally recognized awards for excellence or prizes
  2. Membership in associations in your field that require outstanding achievement by members
  3. Having material published about you in major trade or professional publications or major media
  4. Being asked to judge others' work, either individually or as part of a panel
  5. Producing original scholarly, scientific, artistic, athletic, or business-related work of major significance to your field
  6. Authoring scholarly articles in major trade or professional publications or major media
  7. Displaying your work in artistic showcases or exhibitions
  8. Taking on a critical or leading role in distinguished organizations
  9. Commanding a high salary or remuneration compared to others in the field
  10. Achievement of commercial success in the performing arts

While it is unclear what three criteria Mrs. Trump met, according to one EB-1 attorney quoted by the New York Times, "I am assuming she made a lot of money, got a lot of press and was on the cover of magazines. She was probably a pretty easy case."

The second part of the test is a "final merits determination" by the U.S. Citizenship and Immigration Services. That determination is considered by many immigration lawyers to be pretty subjective. The immigration officer makes the final determination of whether the evidence submitted is sufficient to show the applicant is really at the top of their field.

If you have questions about an EB-1 visa or any visa, we recommend contacting an immigration lawyer.

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